Articles Posted in Divorce and Family Law

News and sports television, radio, and other media have been buzzing in recent days about what seems like an epidemic of domestic violence that is suddenly coming to the public’s attention. This is largely due to several high-profile professional athletes being accused of abuse of their spouses or children. We have even seen repercussions of this locally as a prominent member of Montgomery, Alabama’s legal community has recently been arrested and charged with an incident of domestic violence; as of this writing, calls for his resignation from his position are increasing.

What does Alabama’s law say about what constitutes “domestic violence” and what can result from a conviction for this offense?

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Often, divorced parents become dissatisfied with custody arrangements that are put in place by their divorce court years after the order was entered. Whether one parent feels that the other parent is not keeping up their end of parental responsibility, or a parent who does not currently have any physical custodial rights now wants them, there are many reasons that a parent may be interested in having a custody order modified. Depending on what the specific circumstances are, however, the approach may differ from case to case.

In 1984, the Alabama Supreme Court established a rule, called the McLendon standard, by which petitions for custody modifications should be reviewed; if the original order was not one for joint custody, and the noncustodial parent seeks to modify the order, then that parent must establish that the positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. In addition, that parent seeking the change must show not only that he or she is a fit parent, but also that the change of custody materially promotes the child’s best interest and welfare.

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There are two basic ways to dissolve a marriage in Alabama: divorces and annulments. Although media coverage of divorces is widespread, particularly with regard to celebrity couples, much less coverage is granted to annulments. The effect of an annulment is to declare an invalid marriage as having been void from inception. As opposed to traditional divorce situations, where grounds must be established as having taken place during the marriage, an annulment requires there to have been some extenuating circumstance at the inception of the marriage that rendered it ineffective. Additionally, there are other marriages that may be considered “voidable” rather than void at inception, and court action would have to be taken in order to have such a marriage declared voided.

Generally, fraud that is utilized to induce a marriage or to motivate a party to participate in a marriage may render such a marriage voidable. The prototypical “shotgun wedding” is a classic example of this. If a party to a wedding is improperly motivated to participate under threat of violence or death, otherwise termed “duress”, then a valid argument could be made in favor of an annulment.

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In domestic relations proceedings, establishing proper jurisdiction is paramount. Upon the proper establishment of the two forms of jurisdiction needed, petitioners in a family law matter will be ready to have their case heard, but the likelihood of being heard only by a judge is high; contrary to belief, there is no right to a jury trial in a divorce proceeding.

In Alabama, a court must hold both subject matter and personal jurisdiction over a divorce case before it may hear the case. Subject matter jurisdiction, the first required type of jurisdiction for a court to hear a divorce case, is present if: (a) the status of the marriage is before the court; (b) a valid, statutory ground for divorce is pled; and (c) the residency requirement is met. Subsection (a) is fulfilled when the divorce pleading is filed, so long as at least one of the parties to the divorce is domiciled in Alabama. Under subsection (b), the ground stated for divorce must be sufficiently proven; if at least one of these grounds is not proven, a jurisdictional defect is said to have taken place and the proceedings will be deemed void.

Because of subsections (a) and (c), personal jurisdiction (further detailed below) is necessarily included in subject matter jurisdiction. Filing fees are always required, and differ in amount based on the county you are filing in. If the required filing fees are not paid, a jurisdictional defect is considered to have occurred. Because of this, careful planning is required for a properly filed divorce action to hold weight in Alabama’s court systems. For this reason, if you are considering proceeding with a domestic relations matter, it is highly important that you consult with an experienced family law attorney.

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For the past twenty years or so, Alabama laws have been changing in order to address the problem of violence among those in family relationships. These Domestic Violence laws supplement existing laws such as assault, menacing, reckless endangerment, or harassment if the alleged victim “is a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating or engagement relationship with the defendant” (Code of Alabama, § 13A-6-132)

 

In many cases, the “Domestic Violence” designation can result in an increased penalty upon a conviction, and even in the deprivation of civil rights such as the right to possess a firearm.  In nearly every case, however, it results in differences in the way cases are handled.

 

It is the practice in most courts that a person arrested for an offense involving domestic violence is immediately served with a protective order that seeks to prevent further incidents, and sometimes forbids any contact at all between the accused and the alleged victim. Violations of these orders can lead to additional charges being brought against the accused. Because of this. it is important to carefully read these protective orders and strictly comply with their contents.

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